Commission of Avoidance

The formation of a Commission of Enquiry (COE), announced by the Myanmar[1] Government on 30 July, 2018, has been criticized by rights groups as another attempt to reduce international pressure without providing the justice that Rohingya and other ethnic nationality victims of the Myanmar military’s crimes demand. The international community must view this COE in the context of past failures to investigate in good faith, the lack of independence in the members chosen, and not be fooled by this smokescreen intended to delay and avoid accountability.

The membership of the COE already calls into serious question its independence and impartiality. One of its two Myanmar members, Aung Tun Thet, was part of the 2016 national investigation which rejected UN documentation of crimes against humanity committed against Rohingya, and has given many interviews in which he makes clear that he is already convinced that no international crimes were committed by the military. He is also the chief coordinator for the Union Enterprise for Humanitarian Assistance, Resettlement and Development in Rakhine – a body which has led the bulldozing of Rohingya villages, destroying not only any remaining Rohingya property but evidence of atrocities committed by the Myanmar military. The presence of someone so heavily involved in denying allegations of rights violations and covering up evidence should be conclusive that this COE will not conduct serious, impartial and independent investigations. In addition, one of the international members, former Philippine deputy foreign minister Rosario Manolo, was involved in negotiations to establish the ASEAN Intergovernmental Commission on Human Rights, which has been criticized as undermining human rights norms in the region and covering up for government abuses.

“The absence of any references to mass atrocity crimes by the armed forces of Myanmar or discriminatory laws and policies against minorities throws the impartiality of the Commission into question.”

A joint statement by Progressive Voice, Equality Myanmar and FORUM-ASIA

The COE has no clear mandate or powers, which also calls into question its independence and impartiality, as well as its ability to investigate human rights violations. Instead, the announcement of the formation of the COE mentioned only that the COE will “investigate the allegations of human rights violations and related issues, following the terrorist attacks by ARSA [Arakan Rohingya Salvation Army].” As a joint statement by Progressive Voice, Equality Myanmar and FORUM-ASIA points out, “The absence of any references to mass atrocity crimes by the armed forces of Myanmar or discriminatory laws and policies against minorities throws the impartiality of the Commission into question.” The lack of transparency in the mandate also means the public will not be able to monitor whether the commission performs as intended.

The Kofi Annan Commission, whose recommendations are often referred to as a blueprint to resolving the Rohingya crisis, recommended that the Government “ensure … that perpetrators of serious human rights violations are held accountable.” However, there has been no mention of accountability in the mandate of or during the formation of this COE. Instead, discussions among public commentators have included the need to create the COE in order to reduce international pressure, but not the importance of finding truth and accountability.

In addition to not bringing justice to the victims, the COE could do real harm to victims and witnesses and allow perpetrators to continue their crimes. Without power to compel cooperation from the military, and likely no unrestricted access to Rakhine State for commission members or staff, to the extent that the COE actually investigates, it will rely on the testimony of victims and witnesses. However, reprisals including intimidation, harassment, threats, violence and arrest, are common against those who provide information to media and human rights investigators about military abuses, as well as the journalists who report those abuses. With Reuters journalists still facing charges after investigating the massacre at Inn Din – which the military has already admitted to – will anyone dare to provide information to the COE?

“[t]he failure of UN Security Council members to uphold their responsibilities and act to end impunity has resulted in many thousands of deaths, thousands of women being raped, and more than a million people across the country being forced to flee their homes.”

A statement by Karen Communities Worldwide

Another risk that the COE poses is to ongoing, credible processes to seek justice internationally. The COE does not fill an existing need – there is already an independent, impartial fact-finding mission (FFM) mandated by the UN, which Myanmar has refused to cooperate with. Instead, the COE appears designed to reduce pressure for further UN action including any actions by the International Criminal Court (ICC), which is currently deciding whether it has jurisdiction over the forced deportation of Rohingya into Bangladesh. Calls are also growing, from civil society and from high-ranking UN officials, for the UN Security Council to refer Myanmar to the ICC, so that the court can have jurisdiction over all international crimes against the Rohingya and other ethnic nationalities. On 30 July, 2018, over 20 Karen organizations around the world called on the UN Security Council to refer Myanmar to the ICC, saying that “[t]he failure of UN Security Council members to uphold their responsibilities and act to end impunity has resulted in many thousands of deaths, thousands of women being raped, and more than a million people across the country being forced to flee their homes.”

Given this pressure, it is concerning that leading countries such as the United Kingdom, which currently holds the Presidency of the UN Security Council and is the point country on Myanmar on the Council, appear willing to “wait and see” what this COE will do before supporting other international measures. This would be a grave mistake, given that it is already clear that the COE was designed to avoid, not provide, accountability.

Myanmar has already conducted a number of purported investigations of human rights violations against Rohingya in recent years, and these investigations have almost entirely absolved the Myanmar military of wrongdoing and focused on alleged abuses by ARSA. The only investigation to find military wrongdoing, in the massacre at Inn Din village, was conducted after Reuters journalists uncovered military abuses. Viewed in this context, Myanmar has given its people and the international community no reason to believe that this COE will be anything more than a smokescreen. Instead of waiting and seeing what results it will produce, the international community must maintain pressure on Myanmar to cooperate with existing international mechanisms including the FFM, and on the Security Council to refer Myanmar to the ICC. Anything less would be a betrayal of the Rohingya and other victims, who clearly demand justice.
____________[1] One year following the 1988 pro-democracy uprising, the former military junta changed the country’s name from Burma to Myanmar overnight. Progressive Voice uses the term ‘Myanmar’ in acknowledgement that most people of the country use this term. However, the deception of inclusiveness and the historical process of coercion by the former State Peace and Development Council military regime into usage of ‘Myanmar’ rather than ‘Burma’ without the consent of the people is recognized and not forgotten. Thus, under certain circumstances, ‘Burma’ is used.

By The South Asia Human Rights Documentation Centre, the South Asia Forum for Human Rights, the Chin Human Rights Organization, the Chin Refugee Committee Delhi and the Independent Chin Communities Malaysia